Pay Me What I Deserve: Restitution for Victims of Sex Trafficking

Trapped. Trapped in a life of misery; often beaten, starved, and forced to work as prostitutes or take grueling jobs as migrant, domestic, restaurant, or factory workers with little or no pay. This is the true definition of human trafficking according to the FBI’s annual report. This is what is now considered the epitome of modern day slavery and what many individuals, predominantly women, are facing within the realms of North Carolina, the United States, and all around the world.

The State of North Carolina is known for many things, sex trafficking typically not being one of them. However, North Carolina is ranked the eighth highest state in the country where sex trafficking occurs. Charlotte, in particular, is a major international transportation hub for traffickers due to the very close proximity to major highways such as I-85 and I-77, which lead to Miami, Atlanta and D.C. Traffickers typically target the area because victims can be picked up and taken quickly, making it very hard to find and prosecute the people involved in taking these individuals. [1] Moreover, Charlotte has numerous sporting and entertainment events throughout the year, a large agricultural economy, and proximity to major airports not just in Charlotte, but also in Raleigh and Durham.When these major events take place women are typically brought into town by the carload and sold to interested buyers in town.

Many women will never overcome being a victim of sex trafficking, but thankfully some do. This global issue has gained widespread support from many activists and churches attempting to educate the general population and raise funds for these individuals who have been affected by trafficking. The legislature has taken these steps even further by implementing laws and regulations under the Trafficking Victims Protection Act, to compensate survivors of human trafficking and allowing them to file suit against a defendant requesting monetary restitution. Federal courts must now consider an order of restitution for the benefit of victims. [2] For most of these survivors, a restitution award will be their best and only opportunity to obtain the compensation necessary to assist them in rebuilding their lives.

What is Restitution & How is it Calculated?

Restitution in general is defined as: returning to the proper owner property or the monetary value of loss. [3] Sometimes restitution is made part of a judgment in negligent or contract cases. In criminal cases, one of the penalties imposed is requiring return of stolen goods to the victim or payment to the victim for harm caused. Restitution essentially means restorationin the judicial system. A victim is restored when she is placed in a position she would have been but for the defendant’s unjust enrichment upon services provided.

The Victim’s of Trafficking & Violence Protection Act of 2000 (“TVPA”),which has been adopted within the State of North Carolina, focuses on how to calculate the victim’s economic losses. When it comes to lost income, “the term ‘full amount of the victim’s losses’ . . . shall . . . include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.” Where the value of the victim’s labor to the defendant cannot be easily determined, typically as in the case of forced prostitution, restitution may be awarded in the amount of the defendant’s ill-gotten gains. Other courts have applied an alternative formula for compensating victims based upon the theory of unjust enrichment. This relief can be particularly favorable in sex trafficking cases where the fundamental nature of the work is illegal and victims are unable to benefit from a prevailing wage standard.

Problems with Implementation

Despite mandatory restitution laws, courts rarely award trafficking victims lost wages. Moreover, awards that involve sex are the least likely to receive monetary awards, even when the victims are children. Many defense lawyers often argue victims of sex trafficking do not deserve restitution, because the work they performed is illegal. The law requires a human trafficking restitution award to include whichever is greater: the value of the victim’s work under the Fair Labor Standards Act (“FLSA”) or the value to the defendant of the services the victim was forced (or induced, in the case of children) to provide. The value to a defendant of commercial sexual services tends to greatly exceed minimum wage. One would expect restitution amounts in sex trafficking cases to be vastly greater than those awarded in forced labor cases; however, this is rarely the case. The TVPA’s mandatory restitution provision is frequently overlooked, leaving trafficking victims empty-handed and deprived of resources that would enable them to start their lives over again.

The Human Trafficking Pro Bono Legal Center, in collaboration with WilmerHale, conducted an in-depth examination of all federal criminal human trafficking cases brought between 2009 and 2012. A total of 306 federal indictments for human trafficking were identified between 2009 and 2012. The data showed that restitution was awarded in just 36 percent of cases. [4] This research further shows the disturbing result that restitution is rarely awarded in general. And the small sum that has been awarded, which is less than $3 million per year on average for each of the four years, should convey how underserved the rights of trafficked victims are being held. Granted, $3 million sounds like a hefty price tag, but in reality it is miniscule compared to the amount traffickers are making on these women. Sex trafficking is the fastest growing business of organized crime with an estimated revenue of $32 billion annually, or $87 million a day. [5] So let’s do the math: if a trafficker had four women working seven days a week, meeting quotas of $500 per night they would make $632,000 in one year.

To bring this issue closer to home, according to a recent Newsweek Article, a woman reported to be named Janet, was forced into prostitution in Mexico before she was brought to the United States. Once arriving in United States, Janet was brought to a farm labor camp located just outside the city limits of Charlotte, NC. Janet was transported every day from her brothel in Charlotte, to farm labor camps where she was forced to sleep with men from 7 P.M. at night until 3 in the morning. She was forced to sleep with sometimes as many as fifty men per day. Janet’s pimp was eventually arrested and sentenced to 15 years behind bars, plus supervised release. He must register as a sex offender and was ordered to pay Janet $1.2 million in restitution, which will come from the money he made as a pimp and whatever he makes in prison job programs.

Photo courtesy of Newsweek.

Since when did Mandatory become Discretionary?

While Janet may have been successful in receiving an award against her trafficker, most trafficked individuals are not so lucky. It has been more than a decade since this legislation was passed, but courts still mismanage TVPA’s restitution provision, specifically prosecutors. A key determinant of whether and how much the defendants are ordered to pay restitution to any human trafficking victims depends on how hard the prosecutors fight for monetary compensation—even if it is even fought for at all. According to the Wilmerhale study, prosecutors failed to request any compensation in nearly half of the trafficking indictments that were brought in the federal criminal courts over a four-year span. The average court order in sex trafficking cases only awarded victims about $46,000, which is drastically lower than the $214,000 obtained in forced labor cases.

Despite the fact that restitution is mandatory under the statute, the question of whether it should be awarded–both on the facts of a particular case and as a policy matter–is nonetheless frequently debated in restitution hearings. While many prosecutors successfully advocate for restitution, others are not clear on the law when called upon to defend restitution, particularly in sex trafficking cases. As stated above, nearly half do not request restitution at all.

In sex trafficking cases, disconnect between the illegality of the underlying activity and the legal requirements that victims receive compensation provides ample opportunity for defense attorneys to object to restitution. Some defense attorneys consistently dispute that sex trafficking victims are not deserving of restitution. Arguments have even been made that compensation encourages women to be prostitutes.

Is this really the changed mindset and reform we hoped to see with trafficked individuals seeking to change their lives and overcome horrific crimes committed against them when legislators passed this legislation? Do we really think this is the best we can do to end trafficking and stop this massive $32 billion dollar annual industry that is stealing the lives of people we care about? There are numerous local support groups who are working tirelessly to bring awareness to the city of Charlotte, the Polaris Hotline being is one of them. This nonprofit organization is available for questions and tips and can even activate task forces in crises. The United Family Services is another Charlotte nonprofit organization that provides services to individuals and families who are victims of trafficking. The United Family Services provides a shelter in Charlotte, as well as counseling and protective services. The more people know about trafficking, the better. If you, or someone you know, has become a victim to trafficking, please contact the National Human Trafficking Hotline: (888)-3737-888.

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This entry was posted on Tuesday, April 14th, 2015 at 10:00 AM and is filed under Public Interest. You can follow any responses to this entry through the RSS 2.0 feed.
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Join clinic member Gabrielle Valentine and administrative law clerk Hannah Davies as they discuss Amendment 782 to the U.S. Sentencing Guidelines. Hannah Davies is law clerk to the Honorable Judge Reidinger of the Western District of North Carolina.